The principle that churches should not be able to wield
governmental power is an important part of the whole idea of self-government.
You don't want private institutions,
especially but not only religions,
to be able to control your life.
At a time when democracy is under such threat,
no principle could be more basic that that.
I was teaching a class in Constitutional Law at about the same time that I
was writing the first edition of my treatise on the American Constitution,
I gave a hypothetical one class.
I said one thing that we know for sure,
even though the Supreme Court has never really made any decisions about it,
is that in our system of government,
churches cannot wield power over your secular life.
One of my students raised his hand and he said, well,
Professor Tribe, if that's true,
why can't I get a beer with my lunch at Grendel's Den?
I said Ira, I'm not sure what you mean.
What's that got to do with the separation of church and state?
I said well,
my uncle Herbie fled from one of the countries
behind the Iron Curtain because he didn't want to be governed by a tyrannical system.
He'd wanted to be governed by people that he could vote for himself.
When he came here and tried to open up a business,
he learn that the business couldn't serve liquor without a license,
and the church next door said you can't have a license.
I said that, how can that be?
I mean, why is it up to the church,
isn't it up to the Massachusetts licensing authority?
He says, yes, it was,
used to be a rule that any place within 500 feet of a church couldn't serve liquor.
But that law had been changed except the way the law was changed,
instead of saying, if you're within 500 feet of a church,
you can't serve liquor.
It said whether you can serve liquor or not depends on whether the church
decides to veto your application for a liquor license.
As you can imagine, the church might have been more favorable to
liquor licenses of people who were members of the church,
especially if they were members in good standing,
especially if they were members
who gave a little green stuff to the church every now and then.
Then I said, that's just outrageous.
Why don't we bring a lawsuit,
civil rights suit against the liquor licensing authority,
saying that it was exercising power that had been delegated by state law to churches,
and that was unconstitutional.
It's also at a competitive.
I started working with my colleague at the time,
Steve Breyer hadn't yet become a Supreme Court Justice He
thought one of the things we should do is include an anti-trust count in the complaint.
The law was invalid because of the antitrust laws,
the Sherman Antitrust Act.
Steve and I and Ira,
with the help of David Rosenberg and
other colleague who had a lot of experience in civil litigation,
worked up this complaint.
We filed the complaint in federal court.
Federal district judge, Judge Joseph Toro,
a great judge, ruled for Grendel's Den.
But then the state got that overturned by
the first circuit Court of Appeals and then we
got that overturned by the first circuit on bank,
that is the full first circuit.
Then the state of Massachusetts decided to take that case to the US Supreme Court.
What started out as a little question about whether one of my students could have
a beer with his lunch ended up being a major case in the US Supreme Court.
Mr. Tribe.
Mr. Chief Justice, may it please the court.
Let me begin by [OVERLAPPING] emphasized because I
know even in 1982 when the case was decided,
the court was quite enamored of originalism, the original history.
I talked about how even in
the American colonies where there were
established churches at the time of the founding of the Republic,
those churches were not allowed to exercise government power.
That was an important distinction.
As a matter of fact,
the history of England where there wasn't established
Church of England took great care not to
give churches the power to veto liquor licenses held by pubs nearby.
There was a statute in England that specifically
prohibited churches for deciding which pubs could serve beer.
Part of the oral argument was interesting
because of something I had totally not anticipated,
because we won the case on the first amendment ground.
The state challenge that in the Supreme Court,
but didn't discuss the anti-trust ground and
suddenly Justice Stevens leans over and says.
Well, but if the Sherman Act applies,
there isn't any constitutional issue remaining.
It's perfectly clear that if there's a violation of
the Sherman Act and the supremacy clause requires that it be reported.
But Justice Stevens, [OVERLAPPING].
Justice Stevens decided to go back to part
of the case that had really disappeared after the very beginning,.
[OVERLAPPING] Avoiding institutional issues
would be served by addressing the Sherman Act claim first.
Sermon act [OVERLAPPING].
My jaw, I thought visibly dropped,
but I had to come up with a reason.
I mean, it's always nice to win a case on a different ground,
but on that ground, if we won,
would've been a long trial.
We would have had to then prove on remand and the district court in Massachusetts,
but this anti-competitive practice really occurred.
We'd have to put the priest on the stand,
would have been a nightmare.
He said, we do have a principal in this court that if we
can decide a case on a non-constitutional ground, we ought to do that.
Wouldn't that be a less dramatic holding?
I thought quickly and said it would actually be a more complicated holding, your honor.
It would actually create an entanglement between church and state.
You would actually have to probe the motives
of the clergy and for the government to probe the motives of
a religious institution violates a whole line of this court's cases saying that
government has no business intruding into
the theocratic affairs of religious institutions.
That satisfied him and the anti-trust issue was never heard from again.
That was probably the most exciting part of the argument because I felt pretty damn
good that I had come up with [LAUGHTER] an
answer to a question that I hadn't prepared for.
After the court ruled that it was unconstitutional,
we had to actually apply for the license,
and that was a grubby process.
They wanted to know, well,
aren't there enough liquor licenses in Harvard Square,
why should we grant a license to Grendel's Den?
Well, I couldn't come up with a very good reason other than one.
I said, well, if you don't,
generations of law students will really think that the law sucks.
It's not going to be worth very much if you win a big case and the Supreme Court,
and then the reason you litigated it in the first place,
turns out not to have justified all the time and effort that you put into it.
They said. We're going to go down in history as bad guys if we deny the license, I said,
not only is bad guys,
you'll be the villains in the great story about
whether the separation of church and state really means anything in this country.
You actually want to be the heroes.
Appealing to their egos worked.
They granted the license,
and the rest is history.
It's a reminder that public officials can
sometimes actually care more about doing the right thing.
That's a source of hope,
which could hardly be more important than a time when hope is hard to come by.